New Congress Takes First Steps toward Immigration Reform

January 15, 2007

Policy Beat

By Julia Gelatt

Prospects for congressional action on immigration reform remain promising now that the Democrats have taken control of Congress. House Majority Leader Steny Hoyer (D-MA) reported on January 7 that congressional leaders spoke with President George Bush about immigration in meetings the first week of January, and the president expressed optimism about his ability to work with Democrats on the issue.

Since then, Senator Dianne Feinstein (D-CA) has reintroduced her targeted AgJobs bill, which was included in the Senate's immigration bill in 2006, on January 10. AgJobs would allow 1.5 million unauthorized agricultural workers to obtain temporary legal status if they meet various requirements; eventually they would be eligible for lawful permanent residence.

Senate Majority Leader Harry Reid (D-NV) introduced a bill (S. 9) on January 4 stating the "sense of Congress" that both the House and Senate should pass a comprehensive immigration reform bill. Debate is expected to begin in the Senate, where Senators Edward Kennedy (D-MA) and John McCain (R-AZ) will unveil this winter a bill patterned on their immigration bill of 2006.

Representatives Jeff Flake (R-AZ) and Luis Gutierrez (D-IL) are likely to introduce parallel legislation in the House. The bill sponsored by Kennedy/McCain and Flake/Gutierrez last year called for a path to legal status for some of the country's unauthorized immigrant population who could meet certain work and English-language requirements; a temporary worker program with a path to permanent status; revised categories and an expanded number of visas for permanent family- and employer-sponsored immigrants; and strengthened border security, among other reforms.

Senator Kennedy is the incoming chair of the Senate Subcommittee on Immigration, Border Security, and Citizenship, while Representative Zoe Lofgren (D-CA) is the new chair of the House Subcommittee on Immigration, Border Security, and Claims.

To read a summary of the Agricultural Job Opportunities, Benefits, and Security Act of 2007 ("AgJOBS") (S 237), click here.

President Proposes Visa Waiver Program Revisions, Extension

President Bush will work with Congress to extend the U.S. Visa Waiver Program (VWP) to additional countries and to alter the requirements for participation with the goal of both strengthening security and facilitating participation, according to several announcements in late November.

Currently, 27 countries, including most of the European Union, Japan, and Australia, participate in the program, which allows nationals from designated countries with valid passports to enter the United States without a visa for up to 90 days for travel or business.

Former Soviet bloc countries and newer EU Member States such as Estonia, Poland, and Hungary, which have supported the president's war on terror, have expressed frustration at not being allowed to participate in the program. Present regulations require that a country wishing to join VWP have a refusal rate for U.S. visas of less than 3 percent and have a low rate of travelers who overstay the 90-day limit.

Under the proposed changes, travelers from VWP countries would be required to provide advance information on their travels to the United States, and receive electronic authorization for their travel. Countries in the program would be required to send advance information about passengers on flights to the United States before the passengers board the planes; report lost and stolen passport data; and agree to promptly accept the repatriation of unauthorized immigrants removed from the United States.

Further, current and prospective participating countries would be asked to take several steps to enhance security, such as standardizing travel documents, using U.S. Federal Air Marshals on flights to and from the United States, and improving airport security, particularly the screening of checked baggage.

In exchange for meeting these conditions, the United States would work to facilitate interested countries' participation in VWP, increasing the flexibility of the less-than-3-percent refusal rate requirement for otherwise eligible countries.

To read a DHS fact sheet about the proposed changes to VWP, click here.

Visit Exit Tracking Postponed at Land Border

Citing technological and financial obstacles, DHS officials have postponed plans to collect fingerprint or facial scans of temporary visitors leaving the country through land ports of entry, according to a December 14 announcement.

U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) officials say that the necessary technology and personnel cannot be implemented at land borders without delays in cross-border transit or enormous cost for infrastructure. According to a report by the Government Accountability Office (GAO), it would take about five to 10 years to implement the exit tracking at land borders.

In the meantime, officials plan to focus on upgrading entry tracking procedures by recording 10 fingerprints rather than the current two, and on implementing the exit system for air travelers.

Original plans for US-VISIT, intended to identify criminal and potential terrorists and identify those who overstay their visas, specified that the exit-tracking component would be implemented at the 50 busiest land-border crossings by December 2007. As much as 45 percent of unauthorized immigrants in the United States are estimated to have entered the country on temporary visas and remained past the visas' expiration.

Under the program, DHS officials have been collecting fingerprints and digital photographs of visitors entering the country since 2004, at a cost so far of $1.7 billion.

To read the GAO report outlining the challenges of implementing visitor-exit tracking at land ports of entry, click here.

ICE Arrests nearly 1,300 Unauthorized Workers in Sweep

Immigration and Customs Enforcement (ICE) agents arrested 1,282 employees suspected of working without authorization and/or of using stolen or borrowed social security numbers to obtain work in six meatpacking plants owned by Swift & Co., on December 13.

Most of those arrested were held on administrative immigration violations, while about 220 were handed criminal charges for identity theft, related fraud, or, in one case, illegal reentry. Fifty-three of those handed criminal charges, all from Texas, were indicted by a federal judge for aggravated felony identity theft and related charges, on January 10. If convicted, these workers will serve their prison time in the United States before being deported.

Over 300 of the 1,282 arrested, mostly those from Mexico, have already left the United States under voluntary departure, while others are in various stages of the removal process. The meatpacking plants targeted are in Colorado, Nebraska, Texas, Utah, Iowa, and Minnesota.

Though Swift & Co. did not face charges, the company estimates the raids will cost about $20 million in lost operating efficiency and another $10 million for hiring and retention bonuses.

Swift & Co. has been a voluntary participant since 1997 in the Basic Pilot Program (BPP), which allows employers to electronically verify whether their employees have work authorization by checking their social security numbers against federal databases. BPP provides the model for most congressional proposals to make electronic verification mandatory nationwide.

"Swift has played by the rules and relied in good faith on a program explicitly held out by the President of the United States as an effective tool to help employers comply with applicable immigration laws," said Swift & Co. President and Chief Executive Sam Rovit the day of the arrests.

The raids highlight a major flaw of the electronic verification program: It verifies the work authorization (name and social secruity number submitted) but not the worker's identity.

U.S. authorities have long conducted workplace raids to target unauthorized immigrants and the employers who hire them in violation of U.S. law. However, this raid was unique because U.S. officials generally have not framed worksite raids as a way of combating identity theft, although workers have used fake, borrowed, or stolen social security numbers on hiring documents since the 1986 law barring the employment of unauthorized immigrants.

According to ICE spokesman Jamie Zuieback, there has been an increase in the use of stolen identities rather than fabricated ones. Officials have not said whether the immigrants arrested at Swift & Co. stole the identities themselves or purchased them from a third party.

To read a December 13 fact sheet from ICE about the operation, click here.

To read a January 10 fact sheet on the federal indictments of 53 former Swift employees, click here.

Policy Beat in Brief

Refugee Policy. The Bush administration plans to sign eight waivers to allow refugees previously barred by stringent application of antiterrorism laws to enter the United States, according to a January 11 announcement. Under the USA Patriot Act and Real ID Act, applicants for refugee status or asylum who provided "material support" to terrorist groups were barred from entry to the United States. However, the laws define "terrorist groups" so broadly as to include even political opposition groups supported by the U.S. government or groups who fought alongside U.S. troops. Further, such laws have been applied to those who provided support unknowingly or under threats of violence. The waivers will cover refugees who were members or supporters of armed groups who fought against the authoritarian government of Myanmar, who fought alongside U.S. soldiers in Laos and Vietnam, and who supported armed groups opposing Fidel Castro in the 1960s, among others. The eased restrictions will not assist all refugees affected by the material support bar. Among those excluded are refugees who provided material support under duress to terrorist groups in Colombia.

SBI Strategic Plan. DHS submitted a strategic plan to Congress for its Secure Border Initiative (SBI) on December 4, which focused almost entirely on the SBInet high-tech border security component of the plan. SBI is a three-pronged initiative to improve border security, increase interior enforcement of immigration laws, and establish a temporary worker program. The strategic plan estimates the department will obtain "operational control" of the U.S. Southwest land border by 2011, at a cost of $7.6 billion. The cost of SBInet had originally been estimated at $2.5 billion. DHS plans to request about $41 billion in total from Congress between fiscal year (FY) 2008 and FY 2011 for its full range of border security operations. According to the strategic plan, DHS has control of 284 miles of the nearly 2,000 mile border as of March 2006, up from 241 miles in October 2005. Despite the new explanation of DHS goals for SBInet, some members of Congress remain critical of the department's lack of clarity about the program's purpose. DHS has admitted it lacks exact benchmarks to measure when it has achieved "operational control" of the border.

Cost of Border Fence. The 700 miles of double-layer border fencing called for in the Secure Fence Act of 2005 could cost more than $50 billion over 25 years, according to a report by the Congressional Research Service (CRS), published December 12. The report cites a Corps of Engineers study that estimates construction of the fencing would cost about $1.2 to $1.3 million a mile, in addition to costs for labor and for purchasing the required property. Further, the Corps of Engineers estimates that maintenance of the fence over its 25-year lifespan would cost between $16.4 million to $70 million per mile, depending on the frequency and strength of attempts to cross it. Congress had authorized only $1.2 billion for the border fence in 2006, which was expected to cover half of the fence's cost. The Secure Fence Act of 2005 would allow flexibility in substituting physical fencing with the type of "virtual fence" being planned under SBInet. Some speculators believe the Democrat-controlled Congress will seek to avoid construction of all 700 miles of fencing.

To read the Congressional Research Service Report, "Border Security: Barriers Along the U.S. International Border," click here.

Supreme Court Ruling. Immigrants who have committed a drug crime defined as a felony in their state but a misdemeanor at the national level should not be subject to mandatory deportation, according to an 8-1 decision by the Supreme Court on December 5. Federal prosecutors had argued that Mexican national Jose Antonio Lopez, a lawful permanent resident (LPR) of the United States, had committed a drug-trafficking crime, which is considered an aggravated felony under immigration law and requires automatic deportation. Under criminal law, a drug-trafficking crime is any felony punishable under the Controlled Substances Act. The government had taken the position that "any felony" included crimes defined as felonies at either the state or federal level. Mr. Lopez's crime, aiding and abetting another person's possession of cocaine, is defined as a felony in South Dakota but a misdemeanor under federal law. In the majority opinion, Justice David Souter wrote that the government had misinterpreted the definition of drug-trafficking crime. The court ruled that "a state offense constitutes a 'felony punishable under the Controlled Substances Act' only if it proscribes conduct punishable as a felony under that federal law." Immigration law experts say the ruling could affect thousands of LPRs every year.

USCIS Skipped Security Checks. U.S. Citizenship and Immigration Services (USCIS) processed 30,000 applications for citizenship in 2005 without checking alien files ("A-files") detailing the immigrants' background, according to a GAO report released in late November. In addition, USCIS has lost track of 111,000 A-files among the agency's 14 busiest district offices. The 30,000 naturalization applications in question made up 4 percent of all applications adjudicated in 2005. Although USCIS currently relies on paper files, the agency has begun a five-year digitization project. USCIS officials state that adjudicators may have checked the A-files but simply not recorded that they had done so. An internal audit in 2005 found that USCIS processed only about 0.5 percent of applications without checking A-files.

To read the GAO report "Immigration Benefits: Additional Efforts Needed to Help Ensure Alien Files are Located when Needed," click here.

Details of Passport Requirement. As of January 23, U.S. citizens and foreign nationals entering the United States by air from Canada, Mexico, or the Caribbean will need to carry a passport under the Western Hemisphere Travel Initiative. The only exceptions include Canadian and U.S. nationals who participate in the NEXUS program for prescreened travelers and arrive at a destination with a NEXUS Air kiosk. There are a few other limited exceptions for U.S. citizens, which apply, for example, to merchant mariners or members of the armed forces. The Secretary of State may also issue waivers in cases of an unforeseen emergency, or for humanitarian or national interest reasons.

To read a DHS press release outlining the new passport requirement, click here.